Trimboli v. Kinkel

123 N.E. 205 (1919)

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Nature of the Case

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Facts

Ps retained D to search the title to land in Brooklyn which Ps were about to buy. D reported that the title was good and marketable. He made up an abstract which he delivered to Ps. This abstract shows that in 1861 title was in Aaron Clark and Harriet A. Anderson as tenants in common. Mr. Clark left a will by which his real estate passed to devisees in fee. Power to sell the land and divide the proceeds was given to the executor. The executor in 1863 conveyed his testator's undivided interest to the co-tenant, Anderson. The grantee in return conveyed to the executor an interest in another parcel. The transaction was not a sale for money, but an exchange. Its nature is disclosed by the deed, which is described in the abstract. Anderson conveyed the land in 1868 to Grimme, whose title passed thereafter, by mesne conveyances, to Ps' vendors. The law is clear that a power to sell and distribute the proceeds is not a power to exchange. There was a flaw in the record title of which D made no mention to Ps. D made no investigation of the occupation of the land. He supplied no evidence of adverse possession. P let his clients complete the purchase on the assumption that the record title was perfect. In 1910 Ps made a contract of resale. The purchaser rejected title because of the flaw in the record. D represented Ps at the closing. D supplied no evidence of adverse possession and made no claim that title could be sustained upon that ground. The purchaser sued for the deposit and the expenses of searching title. Ps were then represented by new counsel. The purchaser prevailed, and the title was adjudged unmarketable. Ps then sued D and D attempted to prove that the defect in the record title had been cured by adverse possession for more than fifty years. The trial judge held there was a marketable title, and that D had not been negligent. The complaint was dismissed. The Appellate Division reversed and ordered a new trial. D appealed.